2018 SPRING JUDGES CONFERENCE

Transcription

1 2018 SPRING JUDGES CONFERENCE April 12-13, 2018 DoubleTree by Hilton Lafayette DISTRICT JUDGES ROUNDTABLE JUDGE C. WENDALL MANNING (moderator) 4 th Judicial District Court JUDGE BRADY O CALLAGHAN 1 st Judicial District Court PROFESSOR WILLIAM R. CORBETT LSU Paul M. Hebert Law Center

2 SELECTED RECENT DEVELOPMENTS (CIVIL) FOR LOUISIANA COURTS William R. Corbett* * 2018 Frank L. Maraist and Wex S. Malone Professor of Law, LSU Law Center. I thank my friends and mentors Professor Emeritus Frank Maraist and Dean Tom Galligan for their newsletters, which I consulted as I prepared this paper. I also thank my friend and colleague Prof. Dane Ciolino, author of the monthly newsletter of the Louisiana Association of Defense Counsel, which I consulted. I thank Taylor Herpin, LSU Law Class of 2017, and Brooke C. Bahlinger, LSU Law Class of 2019, for their research assistance in preparation of this paper. All alleged facts discussed in this paper are as stated by the courts in the opinions or in other sources cited. This paper was last updated on March 27,

3 Table of Contents I. Legislation... 3 A. Exception to Motion to Stay Discovery in Civil Proceeding Related to Criminal Proceeding... 3 B. Motions to Stay Case in Louisiana State Court Due to Pendency of Case in Federal Court or a Court of Another State... 3 C. Preliminary Defaults and Final Default Judgments... 4 D. Electronic Signatures and Filing II. Case Law A. JNOV/New Trial B. Arbitration C. Appeals D. Judgments E. Summary Judgment F. Summary Judgment in Multiple Defendant Cases G. Abandonment

4 I. Legislation A. Exception to Motion to Stay Discovery in Civil Proceeding Related to Criminal Proceeding Act No. 91 repealed Code of Civil Procedure Art (E) in its entirety. Art provides as follows: A. Upon motion of the district attorney in a criminal proceeding, a court having jurisdiction over any related pending civil action or proceeding may, in the interests of justice and for good cause shown after a contradictory hearing with all parties in the civil action, stay all or a portion of discovery sought in such civil action or proceeding. The contradictory hearing shall be held by the court in the civil action within thirty days of the filing of the motion. Good cause shall include but not be limited to a finding by the court that such discovery will adversely affect the ability of the district attorney to conduct a related criminal investigation or the prosecution of a related felony criminal case. Before its repeal, Art (E) provided as follows: E. No provision of this Article shall have applicability to petitions or proceedings for divorce, custody, child support, visitation, or protective orders pursuant to Title 9 and Title 46 of the Louisiana Revised Statutes of B. Motions to Stay Case in Louisiana State Court Due to Pendency of Case in Federal Court or a Court of Another State Act 419 amended and reenacted CCP art. 532 CCP Art Suits Motions to stay in suits pending in Louisiana and federal or foreign court When a suit is brought in a Louisiana court while another is pending in a court of another state or of the United States on the same transaction or occurrence, between the same parties in the same capacities, on motion of the 3

5 defendant or on its own motion, the court may stay all proceedings in the second suit until the first has been discontinued or final judgment has been rendered. CCP Art. 925 Art Objections raised by declinatory exception; waiver A. The objections which may be raised through the declinatory exception include but are not limited to the following: * * * (3) Lis pendens under Article 531. * * * Comments 2017 Subparagraph (A)(3) of this Article was amended to clarify that, although Article 532 appears in Chapter 3 of Book I of Title II, entitled Lis Pendens, the declinatory exception of lis pendens may be raised only under Article 531. Article 532 permits the court to stay the proceedings of a second suit pending resolution of the first suit but does not permit the court to dismiss the second suit by granting an exception of lis pendens. C. Preliminary Defaults and Final Default Judgments Act 419 amended and reenacted numerous CCP arts. and La. R.S. CCP Art Art Confirmation of preliminary default judgment A. A judgment of preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to confirmation the entry of a final default judgment. The court may permit documentary evidence to be filed in the record in any electronically stored format authorized by the local rules of the district court or approved by the clerk of the district court for receipt of evidence. If no answer or other pleading is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of preliminary default. When a judgment of preliminary default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of preliminary default must be sent by certified mail by the party obtaining the judgment of preliminary default to counsel of record for the party in 4

6 default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of preliminary default. B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering a final default judgment. (2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering a final default judgment (3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. C. In those proceedings in which the sum due is on an open account or a promissory note, other negotiable instrument, or other conventional obligation, or a deficiency judgment derived therefrom, including those proceedings in which one or more mortgages, pledges, or other security for the open account, promissory note, negotiable instrument, conventional obligation, or deficiency judgment derived therefrom is sought to be enforced, maintained, or recognized, or in which the amount sought is that authorized by R.S. 9:2782 for a check dishonored for nonsufficient funds, a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final default judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the proposed final default judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the final default judgment. A certified copy of the signed final default judgment shall be sent to the plaintiff by the clerk of court, and notice of 5

7 the signing of the final default judgment shall be given as provided in Article D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony. E. Notwithstanding any other provisions of law to the contrary, when the demand is for divorce under Civil Code Article 103(1) or (5), whether or not the demand contains a claim for relief incidental or ancillary thereto, a hearing in open court shall not be required unless the judge, in his discretion, directs that a hearing be held. The plaintiff shall submit to the court an affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition, the original and not less than one copy of the proposed final judgment, and a certification which shall indicate the type of service made on the defendant, the date of service, the date a preliminary default was entered, and a certification by the clerk that the record was examined by the clerk, including the date of the examination, and a statement that no answer or other opposition pleading has been filed. If the demand is for divorce under Civil Code Article 103(5), a certified copy of the protective order or injunction rendered after a contradictory hearing or consent decree shall also be submitted to the court. If no answer or other pleading has been filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry of a preliminary default, review the affidavit, proposed final default judgment, and certification, render and sign the proposed final default judgment, or direct that a hearing be held. The minutes shall reflect rendition and signing of the final default judgment. Comments 2017 (a) This Article has been amended to substitute preliminary default for judgment of default and judgment by default to make the article more easily understood and to make the terminology consistent within the Article and with other related Articles. A final judgment confirming a preliminary default is now referred to as a final default judgment. These amendments are intended to be stylistic only. (b) Paragraph E of this Article has been amended to provide that, when a demand for divorce is made under Civil Code Article 103(5), a certified copy of the protective order or injunction rendered after a contradictory hearing or consent 6

8 decree as required by that Article shall be submitted to the court in addition to the affidavit of the plaintiff. CCP Art Art Confirmation of preliminary default judgment without hearing in open court; required information; certifications A. When the plaintiff seeks to confirm a preliminary default judgment without appearing for a hearing in open court as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the a written motion for confirmation of preliminary default and proposed final default judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and the fact that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed since demand was made upon the defendant. B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition pleading has been filed within the time prescribed by law or by the court. Comments 2017 (a) This Article has been amended to substitute preliminary default for default judgment to make the Article more easily understood and to make the terminology consistent within the Article and with other related Articles. A final judgment confirming a preliminary default is now referred to as a final default judgment. These amendments are intended to be stylistic only. (b) Paragraph A of this Article has been amended to clarify that a written motion for confirmation of preliminary default is required only if the plaintiff is seeking 7

9 the confirmation without hearing in open court as provided in Article 1702(B)(1) and (C). (c) The filing of the suit constitutes a demand made upon the defendant for the purposes of Paragraph A of this Article. CCP Art Art Scope of judgment A judgment by default final default judgment shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy. Comments 2017 This Article has been amended to substitute final default judgment for judgment by default to make the Article more easily understood and to make the terminology consistent with other related Articles. A judgment of default or judgment by default is now referred to as a preliminary default. This amendment is intended to be stylistic only. CCP Art Art Confirmation of judgment by preliminary default in suits against the state or a political subdivision A. Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of preliminary default against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, a certified copy of the minute entry constituting the judgment preliminary default entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel to the attorney general by registered or certified mail, or shall be served by the sheriff personally upon the attorney general or the first assistant attorney general at the office of the attorney general. If the minute entry and the petition are served on the attorney general by mail, the person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the attorney general with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails mail. In addition the return receipt shall be attached to the affidavit which was filed in the record. B. If no answer or other pleading is filed during the fifteen days immediately following the date on which the attorney general or the first assistant attorney general received notice of the preliminary default as provided in Subsection A of this Section Paragraph A of this Article, a judgment by preliminary default entered against the state or any of its departments, offices, 8

10 boards, commissions, agencies, or instrumentalities may be confirmed by proof as required by Article C. Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of preliminary default against a political subdivision of the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, a certified copy of the minute entry constituting the judgment preliminary default entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel by registered or certified mail to the proper agent or person for service of process at the office of that agent or person. The person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the proper agent or person for service of process, with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails mail. In addition the return receipt shall be attached to the affidavit which was filed in the record. D. If no answer or other pleading is filed during the fifteen days immediately following the date on which the agent or person for service of process received notice of the preliminary default as provided in Paragraph C of this Article, a judgment by preliminary default entered against the political subdivision of the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities may be confirmed by proof as required by Article Comments 2017 This Article has been amended to substitute preliminary default for judgment of default and judgment by default to make the Article more easily understood and to make the terminology consistent within the Article and with other related Articles. A final judgment confirming a preliminary default is now referred to as a final default judgment. These amendments are intended to be stylistic only. * * * CCP Art Art Judgment by Final default judgment A final default judgment by default is that which is rendered against a defendant who fails to plead within the time prescribed by law. Comments 2017 This Article has been amended to substitute final default judgment for judgment by default to make the Article more easily understood and to make the terminology consistent with other related Articles. A final default judgment is 9

11 different from a preliminary default, which is nothing more than an entry in the minutes prior to the rendition of a final default judgment and is not itself a judgment. CCP Art Art Notice of judgment * * * B. Notice of the signing of a final default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state. C. Notice of the signing of a final default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant. * * * Comments 2017 This Article has been amended to substitute final default judgment for default judgment to make the Article more easily understood and to make the terminology consistent with other related Articles. A judgment of default or 10

12 judgment by default is now referred to as a preliminary default. These amendments are intended to be stylistic only. * * * CCP Art Art Annulment for vices of form; time for action A. A final judgment shall be annulled if it is rendered: * * * (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid final default judgment by default has not been taken. * * * Comments 2017 Subparagraph (A)(2) of this Article has been amended to substitute final default judgment for judgment by default to make the Article more easily understood and to make the terminology consistent with other related Articles. This amendment is intended to be stylistic only. CCP Art Art Judgment by Final default judgment in parish and city courts A. In suits in a parish court or a city court, if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final default judgment in favor of plaintiff may be rendered. No prior preliminary default is necessary. B. The plaintiff may obtain a final default judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. C. When the sum due is on an open account, promissory note, negotiable instrument, or other conventional obligation, a hearing in open court shall not be required unless the judge in his discretion directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final default judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk 11

13 of court, sign the proposed final default judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the final default judgment. A certified copy of the signed final default judgment shall be sent to the plaintiff by the clerk of court. Comments 2017 This Article has been amended to substitute preliminary default for prior default and final default judgment for final judgment and judgment by default to make the Article more easily understood and to make the terminology consistent with other related Articles. These amendments are intended to be stylistic only. * * * CCP Art Art Judgment by Final default judgment; justice of the peace courts; district courts with concurrent jurisdiction A. If the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final default judgment in favor of plaintiff may be rendered. No prior preliminary default is necessary. B. The plaintiff may obtain a final default judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. Comments 2017 This Article has been amended to substitute preliminary default for prior default and final default judgment for final judgment and judgment by default to make the Article more easily understood and to make the terminology consistent with other related Articles. These amendments are intended to be stylistic only. CCP Art Art Demand for trial; abandonment; applicability 12

14 * * * C. (1) Notwithstanding the provisions of Paragraph A of this Article, the justice of the peace or clerk may set the matter for trial upon filing of a petition. The date, time, and location of the trial shall be contained in the citation. The first scheduled trial date shall be not more than forty-five days, nor less than ten days, from the service of the citation. If the defendant appears, he need not file an answer unless ordered to do so by the court. If a defendant who has been served with citation fails to appear at the time and place specified in the citation, the judge may enter a final default judgment for the plaintiff in the amount proved to be due. If the plaintiff does not appear, the judge may enter an order dismissing the action without prejudice. (2) If a matter has been set for trial pursuant to Paragraph Subparagraph (1) of this Article Paragraph, no final default judgement judgment shall be rendered prior to the trial date. Comments 2017 Paragraph C of this Article has been amended to substitute final default judgment for default judgment to make the Article more easily understood and to make the terminology consistent with other related Articles. These amendments are intended to be stylistic only. CCP Art Art Same; defense of action The attorney at law appointed by the court to represent a defendant shall use reasonable diligence to inquire of the defendant, and to determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof. Except in an executory proceeding, the attorney may except to the petition, shall file an answer or other pleading in time to prevent a final default judgment from being rendered, may plead therein any affirmative defense available, may prosecute an appeal from an adverse judgment, and generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant. 13

15 Comments 2017 This Article has been amended to substitute final default judgment for default judgment to make the Article more easily understood and to make the terminology consistent with other related Articles. This amendment is intended to be stylistic only. La. R.S. 13: Default judgment; hearings; proof of service of process No preliminary default or final default judgment can may be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who either has done any of the following: (1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant; or. (2) Utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier's confirmation of delivery; or. (3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery. Comments 2017 This Section has been amended to substitute preliminary default or final default judgment for default judgment to make the provision more easily understood and to make the terminology consistent with related Articles in the Code of Civil Procedure. These amendments are intended to be stylistic only. La. R.S. 23: Answer or other pleading, failure to file; judgment by preliminary default If a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or the time extended by the workers' compensation judge, and upon proof of proper service having been made, 14

16 judgment by preliminary default may be entered against him. The judgment preliminary default shall be obtained by written motion. Comments 2017 This Section has been amended to substitute preliminary default for judgment by default to make the provision more easily understood and to make the terminology consistent with related Articles in the Code of Civil Procedure. A final judgment confirming a preliminary default is now referred to as a final default judgment. These amendments are intended to be stylistic only. La. R.S. 23:1316.1(A) Art Confirmation of judgment by preliminary default A. A judgment by preliminary default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer or other pleading is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of preliminary default. * * * Comments 2017 Paragraph A of this Section has been amended to substitute preliminary default for judgment by default and judgment of default to make the provision more easily understood and to make the terminology consistent with related Articles in the Code of Civil Procedure. A final judgment confirming a preliminary default is now referred to as a final default judgment. These amendments are intended to be stylistic only. D. Electronic Signatures and Filing Act 419 amended and reenacted CCP Art. 253 CCP Art. 253 Art Pleadings, documents, and exhibits to be filed with clerk * * * E. The clerk shall not refuse to accept for filing any pleading or other document signed by electronic signature, as defined by R.S. 9:2602, and 15

17 executed in connection with court proceedings, solely on the ground that it was signed by electronic signature. Comments 2018 Paragraph E is new; however, nothing in this provision is intended to abrogate any specific legislation requiring that certain documents be signed by other than electronic means. II. Case Law A. JNOV/New Trial Pitts v. Louisiana Med. Mut. Ins. Co., (La. 5/1/17); 218 So. 3d 58. Facts: A seven-month old child was taken to the emergency room. The baby was treated for hours, her condition worsened, and she died from myocarditis (inflammation of the heart). Parents filed a request for medical review panel, alleging the emergency room doctor committed medical malpractice, breaching in that he failed to transfer the infant to a facility with a higher level of care. The panel unanimously found a breach, and the parents sued the doctor for medical malpractice. After trial the jury returned a verdict for the defendant doctor, finding that plaintiff did not prove a breach. Plaintiffs moved for a JNOV or alternatively a new trial. The district court concluded that the jury got it totally wrong, being completely confused about the applicable standard of care for an emergency room doctor at a semirural hospital. The trial court granted a JNOV, and in the alternative, conditionally granted a new trial. The court of appeal reversed, finding that, given the conflicting expert testimony, a reasonable person could conclude that the plaintiffs did not establish a breach. Issue: Whether the trial court erred in granting a JNOV, and conditionally, a new trial. Holdings and Rationales: (1) The trial court erred in granting a JNOV. The Supreme Court explained that a JNOV is a procedural device authorized by La. C.C.P. art. 1811, by which the trial court may modify the jury s findings to correct an erroneous jury verdict. Pitts, 218 So. 3d at 64. In evaluating a trial court s grant of JNOV, an appellate court must use the criteria the same way the trial judge did in deciding whether to grant the motion the court must determine whether facts and inferences favor the moving party so strongly and overwhelmingly that reasonable persons could not reach the verdict reached by the jury. Id. at 65. Stated differently, if reasonable persons could reach the verdict that the jury did, then the JNOV should be 16

18 overturned and the jury verdict should be reinstated. Under this rigorous standard and the fact that it is not the province of the district court to evaluate the credibility of the witnesses, the court of appeal did not commit error in setting aside the JNOV. Based on the evidence, a reasonable person could have concluded that the plaintiffs did not establish a breach by the doctor by a preponderance of the evidence. (2) The trial court did not commit error in conditionally granting a new trial. La. C.C.P. art provides peremptory grounds for granting a new trial, one of which is when the verdict or judgment appears clearly contrary to the law and evidence. Art grants the trial court discretionary authority to grant a new trial in any case if there is good ground therefor, except as otherwise provided by law. Accordingly, the Court has held that a trial court should grant a new trial [w]hen the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice. Id. at 65. Although not stated in exactly this way, the trial court s reasons suggest that it found the verdict clearly contrary to the law and the evidence. The standard for granting a new trial is less stringent than that for granting a JNOV. Unlike with a JNOV, with a new trial the trial judge may evaluate the evidence and draw his own inferences and conclusions and may evaluate witness credibility. Yet, the motion cannot be granted and the verdict set aside for a new trial if the verdict is supportable by any fair interpretation of the evidence. Id. at 66. The standard of review on appeal is abuse of discretion. Review of a grant of a new trial involves balancing the deference accorded to the jury and that given to the trial court. The trial court has much discretion, and the only requirement is that the trial court state an articulable reason or reasons for so exercising its discretion. Id. at 66. The Court reviewed the testimony and concluded that the trial court did not abuse its discretion in granting a new trial, as the articulated reason, that the jury was completely confused about the standard of care applicable to an emergency room doctor in a semirural hospital, was supported by the record. Justice Weimer concurred in the reversal of the JNOV but dissented from the affirmance of the new trial. He noted that the trial judge commented that the jury verdict was supportable by a fair interpretation of the evidence. Given the conflict in expert testimony, Justice Weimer found it an abuse of discretion for the trial court if it concluded that the verdict was so far contrary to the law and the evidence that it offends the conscience. Thus, a new trial was not warranted 17

19 under the peremptory ground in art. 1972(1). Under art. 1973, the trial court has much discretion to grant a new trial, but the court is required to state a reason why it is exercising that discretion to grant a new trial. Given the trial court s statement about the jury being completely confused about the applicable standard of care, Justice Weimer explained that this amounted to disagreement with the jury verdict, which is not a good ground under art Thus, Justice Weimer found neither peremptory nor discretionary grounds for the trial court s granting a new trial. Justice Clark joined the concurring and dissenting opinion for the reasons stated by Justice Weimer. Justice Guidry, concurring, wrote that he agreed with the majority s holding to affirm the trial court s granting of a new trial. Nonetheless, he objected to the language in a case cited by the majority that the trial court has virtually unlimited discretion to grant a new trial. Id. at 80 (Guidry, J., concurring) (quoting Horton v. Mayeaux, (La. 5/30/06), 931 So. 2d 338). Justice Guidry found that phrase inconsistent with art. 1973, of uncertain origin, and an incorrect statement of the law. Id. at 80. (Guidry, J., concurring). However, under the correct standard, abuse of discretion, Justice Guidry agreed with the majority that the trial court did not abuse its discretion in granting a new trial. B. Arbitration Duhon v. Activelaf, LLC, (La. 10/19/16); 2016 WL Facts: Plaintiff had gone to an indoor trampoline park and was injured. Before entering the park, plaintiff had completed on computer a Participant Agreement and Assumption of Risk, which waived the right to jury trial and compelled arbitration. Plaintiff was injured and filed a lawsuit. Defendant filed an exception of prematurity, seeking to compel arbitration. The district court overruled the exception and permitted the lawsuit to proceed, finding that there was a lack of mutuality, with only plaintiff being required to arbitrate. The court of appeal reversed, holding that the arbitration agreement should be enforced. Issue: Whether the mandatory arbitration agreement was unenforceable on general contract principles of consent and adhesion. Holding and Rationale: Yes, it was unenforceable. Both Louisiana and federal law favor the enforcement of arbitration agreements. The Louisiana Binding Arbitration Law (LBAL), La. R.S. 9:4201, expresses the strong legislative policy favoring arbitration. That expression echoes that in the Federal Arbitration Act (FAA). Because the LBAL is virtually identical to the FAA, determination 18

20 regarding enforceability and scope of arbitration agreements is the same under both. There is a savings clause in the FAA under which, according to the U.S. Supreme Court, general state contract principles apply to evaluate the validity and enforceability of arbitration agreements. The savings clause does not, however, permit courts to invalidate agreements under a state law applicable to only arbitration provisions. The Court said that the fact that the arbitration agreement was electronic is of no legal consequence, as Louisiana gives legal effect to both electronic contracts and signatures. La. R.S. 9:2607. The Court relied on Aguillard v. Auction Management Corp., (La. 6/29/05), 908 So. 2d 1, for its analysis of whether an arbitration agreement is adhesionary. In Aguillard, the Court concluded that the arbitration agreement was not adhesionary and was enforceable because (1) the arbitration agreement was in a short, two-page document and was in a single-sentence paragraph; (2) it was not concealed; (3) it did not lack mutuality because the defendants did not reserve their right to litigate; and (4) the parties did not have a significant difference in bargaining power. The Court distilled from this four factors to be applied to determine the validity and enforceability of an arbitration agreement: (1) the physical characteristics; (2) the distinguishing features; (3) the mutuality; and (4) the relative bargaining strength of the parties. Applying those factors to the agreement in this case, the Court concluded that the concealment of the arbitration clause and the lack of mutuality rendered it adhesionary and unenforceable. Dissenting, Justice Weimer, agreed with the four considerations from Aguillard, but he disagreed as to their application to the agreement at issue in this case. Concurring, Justice Clark noted that not only did the arbitration agreement lack mutuality, but it provided that if a patron filed a lawsuit, that patron was liable for $5,000 in liquidated damages. C. Appeals Stewart v. City of Bogalusa, (La. App. 1 Cir. 8/5/16); 199 So. 3d 651. Facts: In a disputed workers compensation claim, the employer moved for partial summary judgment on the issue of whether the claimant was totally and permanently disabled. Following a hearing, the judge granted the partial summary judgment on permanent and total disability benefits and ordered that all remaining claims would proceed. OWCA issued a notice of signing an interlocutory judgment in a workers compensation case. The claimant filed a writ application, which was denied, and then filed a motion for devolutive appeal requesting that the judgment be certified 19

21 as final and appealable. The workers compensation judge designated the judgment as final and appealable pursuant to La. CCP art. 1915(B), stating that there is no just reason to delay the appeal, but he did not provide any reasons for the designation. Issue: Whether the workers comp judge erred in designating the partial summary judgment as final and appealable. Holding and Rationale: Yes. When a judge does not give reasons for certifying a judgment as final and appealable, the appellate court conducts a de novo review. The First Circuit began with the general policy against piecemeal appeals, which must be balanced against making review available at a time that best serves the needs of the parties. In the context of workers compensation proceedings, permitting immediate appeal of partial judgments generally is disfavored as contrary to the goals and procedures of the Louisiana Workers Compensation Act, which are designed to have the WC judge decide the merits of the controversy equitably, summarily, and simply. The employer admitted in this case that there were other issues remaining to be resolved. Given the significance of outstanding matters and the goals and procedures of the Workers Comp Act, the court held that the judge erred in designating the partial summary judgment as final and appealable. Fiveash v. Pat O Brien s Bar, Inc., (La. App. 4 Cir. 9/14/16); 201 So. 3d 912. Facts: Plaintiff sued defendant for a fall on a deteriorating tile step leading to the piano bar. While the lawsuit was pending, the step was significantly damaged by a garbage can being pulled over it. After communications between counsel, defendant repaired the step. Plaintiff amended her petition to add a claim for intentional spoliation of evidence. Defendant moved for partial summary judgment on the spoliation claim. The trial court granted partial summary judgment in favor of defendant, and plaintiff filed an appeal. Issue: Whether appeal was properly before the court. Holding and Rationale: No. The partial summary judgment dismissed only plaintiff s spoliation claim, not her liability claim. The trial court did not designate the partial summary judgment as final and appealable. Because plaintiff s appeal was filed within the time period for filing an application for a supervisory writ, the Fourth Circuit invoked its supervisory jurisdiction, converting the appeal to a writ. Walker v. Archer, , & (La. App. 4 Cir. 10/5/16); 203 So. 3d 330. When a trial court fails to give reasons for a determination under CCP art. 1915(B), the appellate court may either request a per curiam opinion from the trial judge to assist review or issue a rule to show cause to the parties to explain why the appeal 20

22 should not be dismissed. In evaluating the propriety of a certification of a partial judgment, the court considers the four nonexclusive factors from R.J. Messinger, Inc. v. Rosenblum, (La. 3/2/05), 894 So. 2d 1113: (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the trial court might be obliged to consider the same issue a second time; and (4) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Messinger, 894 So. 2d at The overarching question is whether there is no just reason for delay. Id. Fruge Aquafarms, Inc. v. Hicks, (La. App. 3 Cir. 5/3/17); 218 So. 3d Neither party properly introduced evidence at trial. The trial court appeared to rely on a lease attached to plaintiff s petition. At the trial, there was discussion and arguments of counsel, but no introduction of evidence. The trial never commenced in this case, as the trial court rendered judgment without any evidence being formally introduced into the record. Therefore, the ruling of the trial court is without proper foundation, and the judgment is, hereby, reversed. Fruge Aquafarms, 218 So. 3d at Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. La.Code Civ.P. art Fruge, 218 So. 3d at Nabors Offshore Corp. v. Caterpillar, Inc., (La. App. 4 Cir. 11/30/16); 204 So. 3d [A] denial of a writ application is of no precedential value, regardless of the reasons assigned. That is, a writ denial is not precedential for any purpose; it is merely a statement that the court is declining to exercise its supervisory jurisdiction to review the issues addressed at that time.... In general, the denial of supervisory writs does not bar a different conclusion or reconsideration of the same issue argued in the writ application when an appeal is taken from a final judgment.... And the granting of a supervisory writ does not necessarily bar a different conclusion or reconsideration of the same issue when an 21

23 appeal is taken, although the granting of a supervisory writ in the appropriate case might have more weight. Nabors Offshore, 204 So. 3d at D. Judgments Thompson v. Beagle, (La. App. 4 Cir. 8/16/17); 226 So. 3d 518. Judgment stating as follows lacked definitive decretal language necessary for appellate jurisdiction: IT IS ORDERED, ADJUDGED, AND DECREED that the defendant in reconventional demand s Exception of Prescription be granted. The appellate court could not determine from the face of the judgment whether the granting of the exception resulted in dismissal of all or only some of reconventional plaintiff s claims. In the absence of decretal language specifying the relief granted, the judgment was not a final, appealable judgment. The court did not exercise its discretion to convert the appeal to an application for supervisory writs because the appeal was filed more than thirty (30) days after the judgment was granted. Bayer v. Starr Int l Corp., (La. App. 4 Cir. 8/15/15); 226 So. 3d 514. The definitive decretal language necessary for a valid final judgment has three components: (1) it must name the party in favor of whom the ruling is ordered; (2) it must name the party against whom the ruling is ordered; and (3) it must state the specific relief that is granted or denied. In a case with multiple defendants or plaintiffs, the failure to name the particular party in favor or against whom a ruling is ordered can render the judgment fatally defective if one cannot determine from its face the rights of each party and the relief to which the parties are entitled. Bayer, at 5, 226 So. 3d at 518. Morraz-Blandon v. Voiron, (La. App. 5 Cir. 8/25/16); 199 So. 3d Facts: Following bench trial in vehicular hit-and-run case, judge recessed, making no factual findings. Judge did not return after recess to render judgment. Record reflects that judgment was given in open court by the civil minute clerk. The written judgment signed by the judge stated as follows: Considering the law and the evidence, this Court finds no liability on the part of the Defendants. Therefore IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Judgment be entered in favor of Defendants. Issue: Whether judgment was valid. 22

24 Holding and Rationale: No. The judgment did not precisely and definitively state the relief granted or denied. It did not dismiss the plaintiffs petition or find in favor of all defendants. From the face of the judgment it was not clear whether the judge considered plaintiffs UM claims or simply considered the liability claims against the owners of the other vehicle. Thus, the specific relief granted or denied could not be determined from the face of the language of the judgment. Because the court had not issued a valid, final judgment, the appellate court lacked jurisdiction and dismissed the appeal and remanded. Urquhart v. Spencer, (La. App. 4 Cir. 12/1/16); 204 So. 3d Judgment was not valid final appealable judgment because in a multiple defendant case the judgment must name the defendant against whom the judgment is rendered, and it must contain decretal language indicating the degree of fault of each defendant as a percentage. Roebuck v. Roebuck, (La. App. 4 Cir. 8/7/16); 198 So. 3d 1210, writ denied, 2016 C 1884 (La. 12/5/16), 210 So. 3d 809. Facts: Wife filed for divorce. She requested that service be held. Husband later accepted service from the clerk of court s office. When he did not answer, she took a preliminary default and an order of divorce was signed by the court. Husband then filed a motion to annul the judgment under CCP Arts and The motion revealed to the court that the husband had first filed for divorce in Mississippi and that proceeding was pending. Husband argued that failure to attempt legal service renders a judgment a nullity under Art for vice of form; the court failed to hold that concealment of court records from husband rendered the judgment relatively null under Art for fraud or ill practice; the court s untimely rendering of judgment on husband s nullity motion is cause to reverse; and the court s failure to continue the divorce proceeding while the Mississippi case was pending was cause to reverse. Issues: (1) Whether the judgment of divorce should be declared a nullity under Art (2) Whether the judgment should be annulled under Art Holdings and Rationales: (1) No. A judgment cannot be collaterally attacked in a nullity action pursuant to art in the existing proceedings but must be brought by new and separate proceedings in the court that rendered the judgment. Thus, the procedure was improper. (2) No. One of the reasons for annulling a judgment is that defendant was not served with process as required by law and defendant has not waived objection to jurisdiction or against whom a valid default judgment was not taken. Because the 23

25 husband accepted service from the clerk and preliminary default was granted and confirmed, that ground in Art was not satisfied. Under Art a judgment is to be annulled if the court lacks subject matter jurisdiction. The district court determined that it had subject matter jurisdiction because at least one spouse was living in Louisiana and was domiciled in the parish. The husband also did not contend or offer proof that he was incompetent, another ground for annulment in Art Finally, the court s failure to continue the proceedings while the Mississippi divorce case was pending was not a ground covered in Art. 2002, and the court was under no obligation to continue the matter. Llopis v. State, (La. App. 4 Cir. 12/14/16); 206 So. 3d 1066, writ denied, (La. 3/24/17); 217 So. 3d 355. Facts: Court denied exceptions of no cause of action, res judicata, and improper service. Defendants filed a motion for new trial of the exceptions. The trial court granted the motion and reversed its prior ruling and sustained the exception of no cause of action. Issue: Whether the court erred in granting a new trial on denial of exceptions. Holding and Rationale: Yes. A judgment denying the exception of no cause of action is an interlocutory judgment, and there is no procedure to apply for a new trial of an interlocutory judgment. The proper device to obtain review is an application for a supervisory writ. Riddle v. Premier Plaza of Monroe, LLC, 51,173 (La. App. 2 Cir. 2/15/17); 216 So. 3d 170. Facts: Event planner sued symphony orchestra and Premier Plaza. Judgment was rendered against plaintiff and in favor of defendants. Plaintiff learned that judge had served on symphony orchestra board. Plaintiff moved to annul the judgment under CCP art She claimed that the judgment had been obtained by ill practice because there was a mandatory ground of recusal under CCP art Petition to annul was tried and decided against plaintiff. Issue: Whether judgment should have been annulled for ill practices. Holding and Rationale: Yes. Serving as a board member for any organization necessarily evidences a personal interest of a substantial nature. A finding of ill practices does not require a determination of intent. The trial judge s failure to recuse herself was an unintentional ill practice, and the trial court abused its discretion in failing to annul the judgment. 24